R v P, NJ - [2003] SASC 308

R v POMPEY
[2003] SASC 308
Criminal
Trial by Judge Alone: Reasons for Verdicts

MULLIGHAN J The accused, Nathan Jai Pompey, was charged with attempted murder and, in the alternative, wounding with intent to do grievous bodily harm. The particulars of the charges alleged against him were that on 24^th September 2002 at Thevenard he attempted to murder Daniel Higgins or alternatively that he unlawfully or maliciously wounded him with the intent to do grievous bodily harm. Upon his arraignment the accused pleaded not guilty to both charges and the trial proceed by judge alone without a jury. At the conclusion of the trial, I found the accused not guilty of the first charge and guilty of the second charge and indicated that I would publish my reasons for those verdicts at a later time. I now proceed to do so.
Background
The evidence clearly establishes that David Higgins was attacked with a knife outside the house premises at 7 Penna Street, Thevenard at about 10.00 pm on 24^th September 2002. He suffered a severe wound to the left side of his head. The instrument which caused the wound penetrated his skull and brain. He sustained severe injuries which have resulted in serious brain damage. Later I mention his injuries and their sequelae. I merely mention at this stage that the attack upon Mr Higgins caused grievous bodily harm.
The prosecution called a number of witnesses who described an incident at the house at Penna Street and what had occurred at the house beforehand. There are significant differences in the evidence of some of these witnesses but the following matters were clearly established.
The house at Penna Street was occupied by Ms Berris Betts, her partner, Mr Marc Cooke and Mrs Betts’ young children. There was a gathering of friends and acquaintances at the house during the day through to the night of 24^th September 2002. At that time, Mr Kerry Dwayne Betts, a brother of Ms Betts, who is also known as Borga, was living at the house. Mr Higgins was, at the time, a few days short of his twenty-first birthday. He attended the gathering, as did the accused who at the time was aged 18 years. Those present were all Aboriginal persons except Mr Higgins and possibly Mr Cooke. They are all young men and women. A considerable amount of alcohol was consumed and nearly all of those present were substantially affected by liquor, including Mr Higgins and the accused. Also some of them consumed marijuana at times during the day and the evening. Later I shall refer to the evidence of witnesses who were the participants in the gathering.
Mr Higgins was very intoxicated. His mother called at the house at about 9.30 pm and suggested that he accompany her home. He agreed but did not do so and remained at Penna Street. She described his condition as being extremely intoxicated. Witnesses also describe the condition of the accused as being very intoxicated.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v P, NJ

Details

AGLC: R v P, NJ [2003] SASC 308
Case: [2003] SASC 308
Decision Date: 29 August 2003

CaseChat Overview and Summary

The case before the court was a criminal matter involving a stabbing incident. The accused, identified as P, was charged with stabbing a man, Mr Higgins. The evidence presented included witness statements, particularly from Ms Wyarta Jade Miller, who testified about an incident at a party where the accused expressed a desire to stab someone. The court had to determine the admissibility of this evidence and assess its relevance and probative value.

The primary legal issue before the court was whether the statement made by the accused, as recounted by Ms Miller, was admissible as evidence. The defence argued that the statement was inadmissible as it was merely evidence of propensity, which is generally not allowed in criminal trials. The court had to weigh the probative value of the statement against the potential prejudice it might cause to the accused. This involved considering whether the statement could provide insight into the accused's state of mind or intentions at the time of the stabbing.

The court accepted the evidence of Ms Miller and found it to be relevant and admissible. The court concluded that the statement could provide valuable insight into the accused's mindset and potential motives, which was pertinent to the prosecution's case. The court carefully assessed the balance between the probative value of the evidence and any potential prejudice it might cause. Ultimately, the court ruled that the statement was admissible as it could help establish a connection between the accused's prior statement and the act of stabbing.

The court's decision allowed the evidence of Ms Miller to be presented in the trial, which was crucial for the prosecution to establish the accused's intent and possible motive. The final outcome of the case would depend on the entirety of the evidence presented, including the admissibility and weight of Ms Miller's testimony.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I accepted the evidence of these witnesses.The evidence of Ms W.J. Miller I mention the evidence of Wyarta Jade Miller. She is aged 19 years and is an Aboriginal woman. She was called by the prosecution and Mr Lang objected to her evidence on the ground that it was merely evidence of propensity and therefore was inadmissible. I heard her evidence on the voir dire so that its relevance and probative value could be assessed. She said that on 21st September 2002, a few days before the stabbing, she had a party at her home in Ceduna to celebrate the 21st birthday of her sister. The party had been at a sailing club and some of the guests had then gone to her house. She and the accused are cousins and he attended the after party. Ms W J Miller said that she, the accused and about three or four other Aboriginal persons were in the kitchen. They were all aged around 21 years. As she was walking out of the kitchen, she heard the accused say, “I feel like stabbing some cunt”. In cross-examination she acknowledged that she had told the police that the accused had said, “I feel like stabbing someone”. She said that she could not now remember which word he had used. She said to him, “Stop talking silly”. The accused laughed, said he was mucking around and went outside the house. According to Ms W J Miller, the accused was drunk and he appeared to be having a good time. She said that she went to bed. She also said that she had never heard the accused say anything like that on any other occasion. According to Ms W J Miller, she had only consumed about five or six drinks of spirits at the party at the sailing club. She took drinks containing spirits back to her house at the after-party where she had one or two drinks. She said that she was really sober when the accused said the words I have mentioned. Ms W J Miller heard about the stabbing of Mr Higgins and she then mentioned to someone else what she had heard the accused say at the after-party. Her father is a police officer and she told him what the accused had said. In cross-examination she said that the words spoken by the accused were part of a conversation he was having with the others in the kitchen. The group was drinking and laughing. It was a happy occasion. I admitted the evidence and indicated that I would give my reasons for doing so later. On the prosecution case there is no known or apparent motive for the stabbing. There was no issue between the accused and Mr Higgins before an incident in the kitchen of the house at Penna Street which occurred shortly before the stabbing. I mention that incident later. The defence of the accused to the charges was not known prior to the defence being presented at the close of the prosecution case. I made my ruling almost at the end of the prosecution case and no obvious defence had arisen at that time. At the time of making the ruling, it was not known if the defence was to be that the accused did not stab Mr Higgins, or that he was justified in doing so, or that the stabbing was an accident, or that he did not form the required general or specific intentions to attract criminal responsibility, or otherwise. The prosecution had to rebut any potential defence as part of its own case.

Decision

Reasons for decision

MULLIGHAN J

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Ratio Decidendi

Legal Principle Established

Established by: MULLIGHAN J

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